Sotto Voce

July 1, 2009

A tip from an informant led Detective Amando Rodriguez and Sergeant Diane Contreras to the stash house--actually a New York City apartment--which they had good reason to think contained a substantial haul of drugs. The suspicion was confirmed when they busted a man leaving the building with a kilo of cocaine in a black bag. The officers entered the building to stake out the apartment. That's when the carryout delivery woman arrived with an order for the stash house. Worried that she might inadvertently draw attention to their presence, the cops made a hasty decision to enlist her help. The officers told her to knock on the door and announce the arrival of food. When the door swung open, the cops ordered all six inhabitants into the hallway and then searched the apartment. There they found five kilos of coke and $15,000.

There was one problem with the bust: The cops didn't have a warrant. So a district court judge ruled that the police had violated the Fourth Amendment; the drugs and cash weren't admissible evidence. The case didn't end there, however. It went to the U.S. Court of Appeals for the Second Circuit--a panel that included Judge Sonia Sotomayor. She was far less sympathetic to the police than the district court, but her colleagues were not and they carried the day. "[B]y answering the door to receive their food delivery," the majority ruled in U.S. v. Gori (2000), the stash house occupants "had no reasonable expectation of privacy."

Many reviews of Sotomayor's appellate opinions have found them dry and technocratic. "[T]hey reveal no larger vision, seldom appeal to history and consistently avoid quotable language. Judge Sotomayor's decisions are, instead, almost always technical, incremental, and exhaustive," wrote Adam Liptak in The New York Times. After an initial reading of her majority opinions, I came to a similar conclusion.

But Sotomayor's dissenting opinion in the Gori case doesn't fit this characterization at all. It is filled with blistering language. She called the majority's holding "unprecedented" and "extraordinary." Ridiculing the majority's characterization of the officers' behavior as a polite request to step outside for the purpose of a "limited investigation," she chastised her colleagues for failing to recognize the "obvious element of coercion" that reasonable people would feel in being confronted in their homes by officers pointing guns at them through an open door. And Sotomayor was persuasive on the substance as well. In 2004, in an opinion written by Judge Richard Posner and joined by one of Obama's Supreme Court runners-up, Diane Wood, the U.S. Court of Appeals for the Seventh Circuit agreed with Sotomayor's dissenting position that allowing the cops to seize anything they see through a door that opens in response to their knock would undermine the constitutional protections for the home.

If Sotomayor's majority opinions are often hard to distinguish from those of her fellow appellate judges, perhaps that's not surprising in a genre so heavily constrained by legal precedents. It's often in dissents that appellate judges can express their true selves--their passions, judicial philosophies, and unique views of the law. And Sotomayor's little-noticed dissents are clearly the opinions in which she has the greatest personal investment. Unlike her majority opinions, her dissents sometimes show flashes of civil-libertarian passion or indignation, even as they remain closely grounded in facts and precedents. Most important, they are substantively bold, staking out unequivocal liberal positions--from a broad reading of the Americans with Disabilities Act to sympathy for the due-process rights of a mentally ill defendant.

Sotomayor, who published 226 majority opinions on the merits during her more than ten years on the appellate court, published only 21 dissents--a rate slightly below average for appellate judges. Although not always ideologically predictable, they are far more liberal than her majority opinions: According to Stefanie A. Lindquist of the University of Texas, Austin, 63 percent of her dissents can be characterized as liberal, as opposed to 38 percent of her majority opinions. (Only five of the 21 dissents are clearly conservative.) It's in these dissents that a different view of Sotomayor emerges: a judge who can be both crusading and open-minded.

In a speech in Puerto Rico in 1994, the same one in which she first said she hoped that a "wise woman" would reach a "better conclusion" than a male judge, Sotomayor also said, "I have struggled with defining my judicial philosophy." No single school of thought, she said, fit comfortably. "I do not believe that I have failed in my endeavor because I do not have opinions or approaches but only because I am not sure whether those opinions and approaches merit my continuing them." Fifteen years later, Sotomayor still hasn't settled into a consistent judicial philosophy, which can either be viewed as a lack of constitutional vision or a sign of pragmatism. It certainly can make her majority opinions hard to predict.

Her dissents, too, are methodologically as well as ideologically eclectic: She samples from different judicial philosophies in different cases. Sometimes Sotomayor sounds like a textualist in the Scalia style, and sometimes she sounds as enthusiastic as Justices Ginsburg and Breyer in her devotion to international law and the living constitution. And what makes her dissents so interesting is that sometimes, she'll use Scalia-like methods to achieve results that Scalia would embrace, but that in other instances would cause his head to explode.

Despite this eclecticism, Sotomayor can display genuine moral and intellectual commitments--and on issues that don't currently have any passionate champions on the court. Her most impressive dissents reveal her to be a true civil libertarian--most famously in two cases where her colleagues upheld strip searches in a school and a prison. Fourth Amendment law is often based on abstractions rather than gritty reality. But, in both of these cases, Sotomayor insisted on describing the searches from the perspective of the people who experience them. This is a refreshingly candid approach that captures the nasty reality of the ordeals. In one case, N.G. and S.G. v. Connecticut (2004), Sotomayor wrote, "The officials inspected the girls' naked bodies front and back, and had them lift their breasts and spread out folds of fat." If it weren't obvious from that description, she concluded, "The young girls described the process as embarrassing and humiliating."

Perhaps her most inspiring dissent can be found in Pappas v. Giuliani (2002), which turned on First Amendment questions. The majority decision allowed the New York Police Department to fire an officer for mailing anonymous racist and anti-Semitic fliers to a charitable group that had solicited him for contributions. Pointing out that the police department itself had made the scandal public by identifying Pappas and disclosing his racist speech to the press, Sotomayor's dissent concluded that "it is not empty rhetoric when Pappas argues that he was terminated because of his opinions"--a result Sotomayor properly argued that the First Amendment forbids. "To be sure, I find the speech in this case patently offensive, hateful, and insulting," Sotomayor wrote. "The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated."

Sotomayor is hardly a First Amendment absolutist: As the Boston civil liberties lawyer and columnist Harvey Silverglate has pointed out, she joined a 2008 opinion which allowed school administrators to retaliate against a student who criticized them as "douchebags" on a blog because the student thought they canceled a band competition. And, like most liberal appellate judges, Sotomayor is perfectly willing to uphold criminal convictions in most cases, as Supreme Court precedent requires. Lindquist estimates that, of Sotomayor's 67 majority opinions involving criminal matters, 81 percent are pro-government and only 18 percent are pro-defendant. (By contrast, in civil rights cases, Sotomayor's majority opinions are about 52 percent liberal and 48 percent conservative.)

Still, the pattern is clear enough: Sotomayor will likely move the Supreme Court marginally to the left on civil liberties issues. Sotomayor's predecessor, David Souter, was a far more liberal and activist justice than is commonly acknowledged. According to Measuring Judicial Activism, a new book that Lindquist has co-written with her University of Texas colleague Frank Cross, Souter can be objectively described as a judicial activist. "Souter was much more likely to strike down a conservative statute than he was to strike down a liberal statute, and that makes him more ideologically activist," Cross told me. (Among the current justices, only Clarence Thomas scores higher on their cumulative activism index.)

But Souter was less consistently liberal in criminal cases involving searches and seizures. He wrote a famously conservative 2001 decision holding that the police could arrest a woman for driving without a seatbelt. A comprehensive survey of Souter's Fourth Amendment decisions by Scott P. Johnson of Frostburg State University characterized Souter as a "moderately liberal" swing vote in search and seizure cases: From 1991 to 1997, he voted 62 percent in the conservative direction; then, in a dramatic shift during his last decade on the Court, voted 61 percent for the liberal position. Sotomayor's Fourth Amendment dissents suggest that she will be a more consistent search-and-seizure civil libertarian than Souter.

Economics is the other area where Sotomayor might push the court a bit to the left. On the Roberts Court, both the liberal and conservative justices have been remarkably pro-business: Consider the 46 cases business cases before the Roberts Court in which the U.S. Chamber of Commerce has participated--the cases of greatest interest to the business community. If you leave out the environment, labor, and employment cases, which are more ideologically divided, most of these cases go the Chamber's way, in areas ranging from punitive damage to securities fraud to antitrust, and most of them are decided by broad bipartisan majorities of 7-2 or higher. This reflects the fact that all nine justices on the Roberts Court share, to varying degrees, a suspicion of "regulation by litigation." David Souter very much shared this orientation: He wrote a series of important pro-business majority opinions, including the 5-3 Exxon case last term, in which he reduced a $2.5 billion punitivedamage award, the largest in history.

Early reviews of Sotomayor's business decisions by The Kiplinger Letter, BusinessWeek and The New York Times have concluded that they are hard to characterize. "Her record is mixed, and though she may not be a business's dream, she's likely to be more sympathetic than some of Obama's other possible picks," wrote The Kiplinger Letter. "[M]any lawyers and scholars who have examined her record closely say that her opinions in [150 business cases] are unpredictable, and do not put her clearly in a pro-or-anti-business camp," wrote John Schwartz in The New York Times.

But, in some of Sotomayor's business cases, she shows the same willingness to stake out bold liberal positions that characterize her dissents. According to Lindquist, two of her three opinions that were reversed by the Supreme Court have been business cases--where her rulings inspired the U.S. Chamber of Commerce to file briefs urging their overturning.

For the business community, a revealing aspect of Sotomayor's record should be her willingness to certify class ction lawsuits against corporate defendants. In the Visa Check case (2001), an antitrust suit against various credit-card associations, she devised a loose standard for allowing class actions to be certified. She included language suggesting that she was not concerned about the practical effects of the suits on business. "Given these conclusions regarding the soundness of the class," she wrote, "the dissent's comments about the possibility that certification will coerce defendants into settlement are largely inapposite. The effect of certification on parties' leverage in settlement negotiations is a fact of life for class action litigants."

Sotomayor can't be considered a pro-class-action ideologue: She later joined an opinion overturning her own ruling in the Visa Check case and in the Painewebber (2002) case, she de-certified an important class-action suit. Broadly, though, Sotomayor seems willing to test the boundaries of the court's current consensus on some of these issues. Indeed, in one of her decisions certifying a class action, Dabit v. Merrill Lynch (2005), she again ruled against the Chamber of Commerce's position, construing the federal securities laws in a way that might have opened the floodgates to similar suits. The decision was unanimously reversed by the Supreme Court in an opinion that included a tart rebuke from John Paul Stevens. The type of suits that Sotomayor would have allowed, Stevens reiterated, "presents a danger of vexatiousness different in degree and in kind from that which accompanies litigation in general."

On the whole, these decisions suggest that, although not an economic populist, she may be less suspicious of "regulation by litigation" than Souter or any of the other justices on the Roberts Court. This may strike fear into the heart of the business community, but, for those who value ideological diversity on the Court, that's not a bad thing.

Of course, Sotomayor's more liberal positions on civil liberties and business issues will generate the charge that she is a judicial activist. But this charge is hard to sustain. In their new book, Lindquist and Cross have created five different categories to measure the extent of a judge's activism: overruling federal statutes, overruling state statutes, overruling executive action, reversing prior precedents, and allowing more access to the courts. Applying these criteria to Sotomayor, Lindquist found her appellate opinions to be not especially activist. Sotomayor reversed the lower court or agency in 47 percent of her majority opinions, which is a little higher than the appellate court average of 40 percent, but not dramatically so. In eight cases where she evaluated the constitutionality of law, there was only one where she struck the law down.

Sotomayor's decisions show a methodological eclecticism that sometimes leads her to the kind of textualism championed by none other than Antonin Scalia. Although this doesn't always lead to judicial restraint, it can lead to ideological unpredictability. In perhaps her most significant conservative dissent, Sotomayor refused to join a 2000 decision that held that the relatives of the 213 victims who died on TWA flight 800 could recover damages for the plane crash, which occurred soon after takeoff from John F. Kennedy Airport. While expressing sympathy for the relatives, Sotomayor concluded that their claims were barred by the plain text of a federal law, the Death on the High Seas Act, which she insisted applies to "all deaths occurring beyond a marine league [three nautical miles] from the shore of any State." (Her colleagues responded that Sotomayor was ignoring the Supreme Court's definition of "high seas" when the law was enacted.) The decision shows that Sotomayor is willing to let her commitment to textualism trump her instinctive empathy for sympathetic victims.

But Sotomayor's textualism has also led her to liberal results. In Hayden v. Pataki (2006), a majority of the full appeals court held (convincingly, in my view) that a New York law which denies the vote to currently incarcerated felons didn't violate the federal Voting Rights Act. Chastising her colleagues for relying on legislative history, Sotomayor's dissent sounded like a liberal Scalia. "It is plain to anyone reading the Voting Rights Act that it applies to all 'voting qualifications,'" she declared. "The duty of a judge is to follow the law, not to question its plain terms."

Sotomayor's textualism, although principled, might also be criticized (like Scalia's) as simplistic. But the picture is complicated by the fact that Sotomayor is hardly a consistent textualist--at times, she employs judicial methodologies that Scalia abhors. In a 2000 case, Croll v. Croll, she dissented from her colleagues' conclusion that a U.S. court lacked jurisdiction to order a child to returned to her father in Hong Kong. Sotomayor concluded that her mother had arguably violated the Hague Convention on International Child Abduction by taking the child from Hong Kong without the father's consent and justified her stance by quoting broad readings of the Hague Convention by courts in Australia, England, and Israel. A decision like this will raise the hackles of conservatives who are suspicious of any and all invocations of international law.

In my view, her most convincing dissents involve not conservative textualism or liberal empathy, but an empirically grounded pragmatism that challenges the majority's premises on its own terms. In 2008, for example, she partially dissented from a decision allowing a district judge to increase the sentence of a defendant convicted for transporting firearms. In a dissent sprinkled with citations to the Bureau of Justice Statistics and publications like The Atlantic, Sotomayor questioned the decision's main premises: that gun violence is more serious in densely populated areas and requires greater deterrence in areas with restrictive gun laws, which create a black market for guns.

Even if Sotomayor may not turn out to be a master of internal court politics in the style of Obama's judicial hero, Earl Warren, her dissenting opinions suggest that she could play a different but still useful role: a strong voice for civil liberties, and economic and social justice--sometimes in the majority, sometimes in dissent. The fact that the Roberts Court currently has no liberal justice who consistently plays this role is all the more reason to welcome the addition of her voice. As Frank Cross puts it: "She may not have been my first choice, but she's a good choice. Her dissenting opinions look liberal but not knee-jerk, and she goes against the grain sometimes; she issued a few significant conservative decisions." And the politics of her appointment are so overwhelming that they're difficult to resist. For these reasons, conservatives will have a hard time attacking her as judicial ideologue, and Democrats can vote for her with hope and expectation.

Jeffrey Rosen is the legal affairs editor at The New Republic.

Jeffrey Rosen is the former legal affairs editor at The New Republic and president and CEO of the National Constitution Center.